Malpractice Consult

By Lee J. Johnson, JD

Document your reasoning, too

•  Patients who understand your thinking are more compliant.

• The record is the most important evidence at a trial.

• You don't have to be perfect, only reasonable.

Q: I've learned through the hospital grapevine that a patient may sue me for failure to diagnose cancer. I remember that I didn't order a biopsy because no lump was palpable on examination, but I hadn't explained my reasoning in the record. Any suggestions at this point?

A: First, resist any temptation to add an explanatory note at this time. You can be sure the potential plaintiff already has a copy of the record. Any attempt to "improve" it at this stage would be seen as self-serving at best, and could compromise your insurance coverage, create licensure problems, and could well be deemed a criminal alteration of a business record.

In the future, remember that it's crucial to explain to patients the reasons behind your treatment decisions, and to document both the reasons and the explanation you give to the patient. Patients who understand your thinking become allies in the diagnostic process. If you tell a patient that no lump is palpable and explain when you want her to return for re-examination, the patient will be more likely to come for the checkup and be conscientious about doing self-exams. The patient is also more likely to believe that any "error" is a reasonable mistake, and not negligence.

Doctors are held to the standard of the reasonable doctor in the same specialty and under similar circumstances. If you're an internist, the question becomes, "What would most internists do if no lump is palpable?" The answer is probably not to order a biopsy but to order a repeat exam in six months.

The truth about malpractice litigation is that you don't have to be perfect, or even right, to win a case. You just have to be reasonable. Let's say that the cancer did exist at the time of your examination, or that it was a fast-growing cancer that didn't appear until later. If you had explained to the patient and documented in the record the reasons for your decision, a lawsuit would probably be defensible, even if your decision ultimately turned out to be wrong.

The medical record is the most important piece of evidence in any malpractice trial. It can be used to impeach testimony. If you say you told the patient to come back in three months but your records are silent on that issue, you'll be asked to explain the discrepancy.

The record is generally seen as more objective and unbiased than your verbal testimony because it was written at a time when your only obligation was recording facts. That's why it's worth the few minutes it takes to jot down your rationale in the record.

That being said, a doctor's ability to explain his reasoning to a jury can win or lose a lawsuit—even in the absence of documentation. The best medical witnesses look jurors in the eye and explain medicine in simple English. If jurors feel the doctor has credibility, they are likely to believe what he says about the reasoning behind his treatment decisions.

 

Lee Johnson. Malpractice Consult: Document your reasoning, too. Medical Economics Apr. 25, 2003;80:94.